Sustained Outrage

Secret meetings, April 13, 2012

Today’s edition of The State Register contains two meeting notices that violate the public notice requirement of West Virginia’s open meetings law.

The agencies involved are the Health Sciences Technology Academy and the Raleigh County Public Defender Corp.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

Secret meetings, April 6, 2012

We missed last week, so today we’ll do a roundup of open meetings violations from each of the last two weeks here in West Virginia.

One meeting in last week’s State Register violated the public notice requirements of West Virginia’s open meetings law. The agency involved was the DHHR’s Commission for Behavior Health and Health Facilities and its Comprehensive Behavioral Health Commission and Advisory Board. Today’s issue of the Register included one meeting that violated the public notice requirements, and the agency involved was the state Emergency Response Commission, which is part of the Division of Homeland Security and Emergency Management.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

Secret meetings, March 23, 2012

Today’s issue of The State Register contains one meeting that violated the public notice requirements of the West Virginia open meetings law.

The agency involved? The board of governors at Eastern West Virginia Community and Technical College.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

Secret meetings, March 16, 2012

Looks like this week’s edition of The State Register contains one meeting that violated the public notice requirements of the state’s open meetings law. The agency involved? The Regional Intergovernmental Council.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

Yesterday morning, I happened to put in a call to my old buddy, Tomblin administration Commerce Secretary Keith Burdette, to ask him a couple of questions about the Marcellus Shale drilling boom — things that were kind of far out in the weeds related to the various proposals out there for a natural gas “cracker” plant that some folks believe is the region’s biggest economic development project in a generation.

By the time Secretary Burdette called me back, rumors were starting to swell that an announcement was coming very soon about one of those proposals, the multi-billion-dollar project from Shell Chemical.  When I asked him about it, Burdette confirmed that state officials had been told an announcement was coming. Shell told the governor what they had decided, he said, but any information on that would have to wait until Shell went public first.

But from the tone of Secretary Burdette’s comments, it was pretty clear how things had played out:

Under any circumstances, it’s going to be a good thing, Some of us are going to be applauding, and some of us are not.  I know there’s an awful lot of pride in trying to be the one who gets the deal, but it really does have a huge regional impact.

The official announcement from Shell came shortly before 1 p.m. From there, the race was on among the West Virginia press corps to figure out how the Shell facility — so much sought after by Gov. Earl Ray Tomblin and state business boosters — ended up going instead to Beaver County, Pa.

In a quick blog post yesterday,  I tried to provide some context about how tax breaks and other incentives rarely seem to have much to do with these decisions, and how improving our state’s educational system and infrastructure might help more in bringing new jobs and a higher quality of life to residents.  The good folks at the West Virginia Center for Budget and Policy soon posted their own take, explaining that if taxes alone were the issue, Shell would have been better off going to Ohio.

It appears that my friend Larry Messina at The Associated Press got the big scoop, with his reporting of this part of the story:

West Virginia lost the battle to attract Shell’s multibillion-dollar chemical plant because of the costs of relocating a casino that occupies the company’s in-state choice for a site, sources told The Associated Press.

Shell announced plans Thursday to build the so-called “cracker” plant in Monaca, Pa., about 12 miles from the West Virginia border. Two individuals with direct knowledge of the negotiations with Shell, but who were unauthorized to speak publicly about them, said the company’s preferred West Virginia location encroached on Mountaineer Casino, Racetrack and Resort.

Other theories came rushing out. The State Journal let gas industry lobbyist Corky DeMarco suggest that labor unions were to blame, for having the gall to criticize another industry project that’s not hiring local union construction workers. Shell didn’t mention this, and ACT Foundation director Steve White made a strong argument that DeMarco is simply wrong. Republicans activists like former Don Blankenship operative Greg Thomas were falling all over themselves to paint this as Gov. Tomblin’s fault, saying it shows the need for the state to “lower taxes on new investment, controlling cost of government, comprehensive legal reform and implement reasonable regulations” along with “ethics and election reform to show potential investors WV isn’t run by corrupt career politicians.” Over at West Virginia MetroNews, Hoppy Kercheval is so rabid to get a Republican governor that he’s pushing candidate Bill Maloney’s argument along these lines, despite admitting in today’s commentary that Maloney and his campaign are probably wrong about it.

But the truth is: We’ll never really know what happened.

That’s because 99 little words in the West Virginia Code give our state’s economic development agents an exemption from the state public records law and, in the process, a free ride from any real public accountability. That’s right. Check out W.Va. Code 5B-2-1, the second paragraph:

Any documentary material, data or other writing made or received by the West Virginia development office or other public body, whose primary responsibility is economic development, for the purpose of furnishing assistance to a new or existing business shall be exempt from the provisions of article one, chapter twenty-nine-b of this code: Provided, That any agreement entered into or signed by the development office or public body which obligates public funds shall be subject to inspection and copying pursuant to the provisions of said article as of the date the agreement is entered into, signed or otherwise made public.

Where did this nifty little piece of state law come from? Well, it was rushed into the code at the behest of state business leaders and the Underwood administration back in 1997, after The Charleston Gazette won a state Supreme Court ruling that forced the West Virginia Development Office to release records about its efforts to lure a $1 billion pulp and paper mill to Apple Grove in Mason County. Back in the day, I wrote a couple of hundred stories about this project, which was highly controversial because of its potential to pollute the Ohio River with dioxin, strip West Virginia hills bare of timber, and bring in non-union, out-of-state workers for its construction.

Development Office officials under Gov. Gaston Caperton had given us some records about their efforts, detailing some requests for large, tax-free state loans, highway improvements, and other incentives that Parsons and Whittemore wanted for the project. But they had withheld hundreds of pages of records, claiming a broad ability to withhold from release any correspondence between state officials and outside parties like the pulp mill developers. The Gazette thought the people had a right to know what sorts of deals were being offered on their behalf, so the newspaper went to court.

In a unanimous opinion issued in mid-December 1996, the state Supreme Court ruled that we were right. The Development Office had to give us many more records, and some of the revelations were fascinating (subscription required):

— State agents met privately with Mason County schools officials to arrange the closing of a local elementary school that was inconveniently located near the proposed mill site.

— Public employees at the Development Office encouraged state environmental officials and legislators to weaken pollution limits to make the mill’s operation easier and less expensive (but also more polluting).

— One state official — longtime state development agent Rolland Phillips — even castigated Gov. Caperton for not taking a strong enough public stance in favor of the mill.

— Phillips also ghost-wrote letters for the company, and then wrote the state’s official replies.

— Other documents showed that the project was eligible for as much as $750 million in Super Tax Credits, far more than the $150 million that Development Officials suggested.

Continue reading…

Secret meetings, March 9, 2012

Today’s issue of The State Register contains four meetings that violated the public notice requirements of West Virginia’s open meetings law.

The agencies involved? The Jobs Investment Trust, the Lincoln County Economic Development Authority, the Board of Examiners for Registered Professional Nurses, and the state Board of Sanitarians.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

Well, West Virginia lawmakers have succeeded in killing off for another year any efforts to fix the huge hole the state Supreme Court — in the name of disgraced former Justice Spike Maynard and his buddy, former Massey Energy CEO Don Blankenship — punched into our state’s Freedom of Information Act.

On Wednesday, the Senate Judiciary Committee voted down a bill that would have overturned that November 2009 ruling the court issued to conceal e-mail messages between Maynard and Blankenship, sent at a time that a huge verdict against Blankenship’s company was headed for a court appeal.  Sen. Evan Jenkins, D-Cabell, explained his opposition to the legislation this way:

The state Supreme Court said our definition is clear and unambiguous. The court itself said we don’t need more clarification, and we are following the viewpoint of most other jurisdictions.

Actually, the meaning of our FOIA in this regard used to be pretty clear … until the Supreme Court’s Maynard-Blankenship ruling was issued. The definition of a “public record” in the statute isn’t that hard to understand:

“Public record” includes any writing containing information relating to the conduct of the public’s business, prepared, owned and retained by a public body.

As I’ve explained before on this blog, the problem is that Justice Robin Davis ignored that and dug through some federal case law to make up a different way of defining the term that would allow the Maynard-Blankenship emails to be kept secret. To get there, Justice Davis had to blatantly mischaracterize some of the emails that had already been released to The Associated Press, which had sued to get the rest of the correspondence. She ended up with this new point of law:

A trial court’s determination of whether personal e-mail communication by a public official or employee is a public record, subject to disclosure under the West Virginia Freedom of Information Act, W. Va. Code § 29B-1-1, et seq. is restricted to an analysis of the content of the e-mail and does not extend to a context-driven analysis because of public interest in the record.

Under that language, the context of the email discussion between Maynard and Blankenship — the heat of a political campaign, the impending appeal of a major case against Blankenship’s company, comments Maynard made defending Massey’s operation of a mine where two workers had recently died — could not be part of the consideration when deciding if the e-mails could be released. The context of a sitting Supreme Court justice having such discussions with the CEO of a major litigant on the eve of important court hearings would not be considered — ignoring the public’s a right to know if such blatant conflicts of interest are at work in our judicial system.

As Justice Margaret Workman explained in her dissent in this case:

In the case at hand, a Justice sitting on the West Virginia Supreme Court of Appeals communicated by e-mail on a somewhat regular basis with a friend who was the Chairman and CEO of a party litigant with a case pending before the Court. With one exception, the literal content of those e-mails did not contain information relating to the conduct of public business.

The fact that those e-mails had been sent, however, did contain relevant information.

First and foremost, it discloses the existence of a personal relationship between a sitting Justice and a CEO of a party litigant. In addition, when the AP made its first FOIA request, a motion filed by the Plaintiffs in Caperton  seeking Justice Maynard’s recusal from that case was pending, the basis of which was his personal relationship with Mr. Blankenship.

The fact that the e-mails were sent, albeit on issues unrelated to matters pending before this court, is clearly relevant to the relationship between Justice Maynard and Mr. Blankenship.

Because that relationship was the basis of a motion for recusal, the relationship was itself related to Justice Maynard’s conduct of the public’s business.

The legislation here, sponsored by Delegate Barbara Fleischauer and a host of House leaders, is really very, very simple. HB 2402 simply modifies the definition of “public record” this way:

“Public record” includes any writing containing information relating prepared or received by a public body, the content or context of which, judged either by its content or context relates to the conduct of the public’s business. prepared, owned and retained by a public body;

Now, Senate Judiciary Chairman Corey Palumbo, D-Kanawha, is seeking a legislative interim committee study not just of this issue, but the state’s entire Freedom of Information Act:

I was a little disappointed that we didn’t pass that bill, which I think would have provided for more transparent government.  And if the committee wasn’t willing to support that, I at least want to take a look at doing it next year.

Perhaps Sen. Palumbo will arrange to have the lawyers who represented The Associated Press — along with the various media and good-government groups that filed friend-of-the-court briefs in support of the AP — come and explain this issue so everyone involved understands it more clearly.

Details of Monsanto dioxin settlement revealed

A view of the Monsanto plant in Nitro,  1980.

Details of the big dioxin class-action settlement between Monsanto Co. and residents of the town of Nitro have been pretty scarce since the Gazette’s Kate White broke the news about the deal two weeks ago. Broad outlines of the agreement were discussed in a court hearing, but those mostly recited what was included in a news release issued by Monsanto officials.

But now, the Gazette has revealed much more information about the settlement in this new story — and we’ve posted copies of the medical monitoring settlement and the property cleanup settlement online.  We’ve also posted a legal brief in which lawyers for current and former Nitro residents outline the terms of the deal and urge its approval by the court. Among other things, Charleston attorney Stuart Calwell argues:

The Settlement Agreements provide for ample funding to accomplish its goals. The Funds created by the Settlement Agreements will pay for medical testing and residential cleanup for potentially thousands of West Virginians. Plaintiffs have sought two remedies in this litigation: medical monitoring and property cleanup. The Class Settlements provide both.

One reason that details of the settlement have been hard to come by is that the two judges who have handled the case — Putnam Circuit Judge O.C. Spaulding and Mercer Circuit Judge Derek Swope (appointed by the Supreme Court to hear the case after Spaulding recused himself) — have imposed broad gag orders on the lawyers for both sides.  The local circuit clerk hasn’t made it any easier. The Gazette had to file a formal Freedom of Information Act request to get electronic copies of the settlement documents that we’ve posted online (the clerk wanted to charge us $1 per page for the .pdf files, an amount that we didn’t believe was “reasonably calculated to reimburse it for its actual cost in making reproductions of such records” under the state FOIA).

Interestingly, on Monday, one lawyer in the case filed this motion asking Judge Swope to lift the current gag order. Attorney Tom Urban has clients who are members of the class covered by the settlement, but his firm is not the “class counsel” and didn’t work out the settlement. Urban has raised some questions about the deal, and told the judge that, with the settlement, the reasons for any gag order have evaporated:

The original purpose of the gag order was to ensure that the prospective jury would not be tainted by information that would affect their ability to properly exercise its role in an unbiased manner, and the order was subsequently expanded further on the eve of jury selection. Now that this Court released the jury during a hearing on February 24, 2012, the exercise by counsel and others under the First Amendment to discuss the settlement with all interested persons, including absent class members, the public, and the press, no longer caries with it the substantial likelihood of materially prejudicing those proceedings.

As a result, those various gag orders must be lifted or they run afoul of the First Amendment and themselves risk prejudicing these proceedings by inhibiting communication by all sides concerning the fairness, reasonableness, and adequacy of the proposed class settlement.

Secret meetings, March 2, 2012

This week’s issue of The State Register contains two meetings that violated the public notice requirements of West Virginia’s open meetings law. The agency responsible for both violations? The West Virginia Library Commission.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

Secret meetings, Feb. 24, 2012

This week’s edition of The State Register includes two meetings that violated the public notice requirements of West Virginia’s open meetings law. The agencies involved? The DHHR Board of Hearing Aid Dealers and the West Virginia Women’s Commission.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.